Supreme Court of Canada dismissed Ktunaxa case against Jumbo

The Supreme Court of Canada, in a ruling handed down late last week, dismissed the Ktunaxa First Nation’s case against Jumbo Glacier Resort, bringing the long-running battle to a final close.

The ruling, delivered by the Supreme Court’s nine judges, was announced on Thursday, November 2nd, in Ottawa and left the Ktunaxa profoundly disappointed with the result, albeit proud of their efforts to take the fight as far as they did, and had resort proponents expressing relief.

“With this decision, the Supreme Court of Canada is telling every indigenous person in Canada that your culture, history and spirituality, all deeply linked to the land, are not worthy of legal protection from the constant threat of destruction,” said Ktunaxa Nation Council chair Kathryn Teneese in a press release. “This judgment should be alarming to Canadians, whether or not they consider themselves religious or spiritual.”

Ms. Teneese told the Pioneer “we still feel full consideration was not given to the information we presented from a spiritual perspective. There was a lot of evidence to support our decision and it seems they may have reviewed it a bit, but didn’t take into as deep a consideration as we feel they should have.”

She also told the Pioneer that despite the result, it was still a battle worth fighting.

“It (the case) is something we feel quite strongly about,” she said. “I believe that it (the pride and effort shown by the Ktunaxa) will be something that will help us.”

The ruling is the last chapter in a case that began in 2012, when the Ktunaxa filed a petition, arguing the First Nation was not properly consulted during the B.C. government’s approval process for the resort (which eventually resulted in a Master Development Agreement). The petition simultaneously argued that building a year-round glacier ski resort in the Upper Jumbo Valley and Upper Farnham areas would violate the Ktunaxa’s freedom of religion (as guaranteed under the Canadian Charter of Rights and Freedoms) since it infringes on Qatmuk, a territory the Ktunaxa consider sacred.

The case was first heard in the B.C. Supreme Court, which dismissed the petition in April 2014. The Ktunaxa appealed this verdict, but the B.C. Court of Appeals upheld the initial ruling in August 2015, which spurred the Ktunaxa to take the case to the highest possible level in Canada. The Supreme Court heard the case in December 2016 and has been deliberating the matter ever since.

The Supreme Court of Canada ruling does not, as was erroneously reported in several other media outlets, amount to the court “approving” the resort — the ruling was strictly on whether or not the Ktunaxa had been properly consulted; and on whether or not their freedom of religion had been violated.

The double-pronged nature of the petition may have created some confusion, with some media outlets reporting the ruling as a unanimous 9-0 decision by the Supreme Court of Canada, and other reporting it as a 7-2 decision. In fact, the judges unanimously agreed, 9-0, that Ktunaxa had been properly consulted (one prong of the petition), and ruled 7-2 that decision to allow a resort in the Upper Jumbo Valley and Upper Farnham area does not transgress the First Nation’s freedom of religion (the other prong of the petition).

The appeal was hailed by many legal experts as a landmark, precedent-setting case, one that pushed the highest court in the country to weigh what exactly the Charter right of freedom of religion entails, and how the state should protect that right — in general terms, as well as specifically in terms of clashes between Aboriginal spirituality and public land-use.

In the end the ruling interpreted the constitutional right to freedom of religion as meaning that people are free to hold whatever spiritual beliefs they may want, and to manifest such beliefs through ceremonies, practice, teaching or dissemination, but that the state is not then obligated to protect the physical objects or sacred sites central to such beliefs (in this case, a landscape), with the judgement reading that “the charter protects the freedom to worship, but does not protect the spiritual focal point of worship.”

The ruling outlined that the government’s duty to consult gives guarantee of a process, but not of a particular result for that process, and is not tantamount to a veto for Indigenous groups in land use decisions.

The two dissenting Supreme Court of Canada judges wrote, in the reasons for their separate judgment, that they felt building the proposed resort would indeed infringe on the Ktunaxa’s right to freedom of religion, but both then later added that they felt the provincial Ministry of Forests Lands and Natural Resource Operations (FLNRO) had adequately and reasonably balanced this right of the Ktunaxa with the ministry’s statutory objective to administer Crown land in the public interest.

FLNRO Minister Doug Donaldson acknowledged to the Pioneer that the court had upheld the province’s approval of the master development agreement, but did not proffer an opinion on the ruling one way or the other.

The Ktunaxa’s case drew much attention, generating headlines across Canada and beyond in the more than five years it was active, and the hearing in Ottawa attracted no less than 17 intervenors, mainly other First Nations and some religious groups.